Legal humor. Seriously.

Bureaucracy

KABC in Los Angeles reported on April 5 that our heroes in the TSA had successfully prevented another innocent disabled person from flying. This time it was a stroke victim in a wheelchair who couldn't answer questions about her expired driver's license because—also due to the stroke—she is mute.

Sherry Wright said she was with her sister Heidi and tried to explain for her, having brought along her sister's Social Security card and papers from the DMV (and possibly also a state ID card). She said that not only did the agent reject her explanation, he or she rudely insisted on hearing it from Heidi herself. When she was unable to respond, being mute, they were turned away, and Heidi had to make an eight-hour bus trip instead.

I once stupidly forgot my driver's license when on my way home for the holidays, and didn't realize this until I needed it at the airport. I assumed you couldn't fly without it, but I asked about that because if I missed that flight I wasn't likely to get another one. Turns out that they will let you fly without an ID. Or at least in my case they did, but only after a brief but uncomfortable interrogation by an airport police officer. I was fine with the questions themselves, but he was in angry-cop-interrogation mode like I was a suspect. Which I guess I was, in a way, but what I kept thinking was, "hey genius, don't you think the fact that I showed up with no ID at all makes it much less likely that I am a professional terrorist?" (All but one of the 9/11 hijackers had valid licenses and/or IDs, and even that one had a passport.)

I thought this, I didn't say it.

That thought also applies here, it seems to me. Maybe it's not impossible that a terrorist would disguise herself as a 58-year-old mute stroke victim in a wheelchair (yes it is), but if she did, she would most likely not show up with an expired driver's license. Don't you think? Genius?

Now is the time when we quote the inevitable TSA spokesperson:

"I think it could have been handled differently by the TSA and it probably could have been handled differently by the family, and hopefully moving forward the family won't have this problem again, because they know about the programs that we have in place," said Nico Melendez with the TSA.

The TSA does have a page on its website for disabled travelers, which includes the number of the "TSA Cares" help line. But according to the family, they called that number, yet when they got to the airport TSA still did not, in fact, care. And the page has no written information for travelers who are mute or have another speech impediment that might interfere with an interrogation. There is information for the deaf or hearing-impaired, who sometimes also have a speech impediment, but there's nothing that would have helped in this case.

If Nico was talking about the TSA's Disability Notification Card, it's hard to see how that would have helped. All that does is provide a card on which you can write down what your disability is, so that you can avoid embarrassment by disclosing it to the TSA "in a discrete [sic] [ugh] manner." But the card doesn't exempt you from screening, and it isn't an official verification of disability status. So having a card that says "I AM MUTE" is no different than, let's say, having your sister along with you to explain on your behalf. Which did not work.

Ultimately, as I have mentioned repeatedly (after hearing it from actual security experts), nothing done since 9/11 has made us any safer except (1) reinforced cockpit doors and (2) passenger awareness of what might happen if we allow a hijacking. If the TSA would admit it can't spot terrorists by looking at them (or talking to them), or if we would just get rid of it, this kind of thing wouldn't happen so often.

He's apparently being fingerprinted by Steve Carell, and frankly this would have made a lot more sense if it had been on an episode of The Office. But it actually happened. What goes through your mind when you're fingerprinting a baby, I wonder?

In this case possibly something like, "Am I really doing this right in front of a reporter?"

The New York Times, source of the picture above, also notes that the alleged baby's next court appearance will be on Saturday. He is out on bail in the meantime, although personally I'd have found he was not much of a flight risk.

As you may recall, after John Brennan showed TSA agents in Portland he didn't have a bomb by taking off his clothes, they got all upset about it and charges were filed. See "TSA: Wants to See You Naked, Complains When You Get That Way," Lowering the Bar (Apr. 18, 2012). Brennan was acquitted of indecent-exposure charges because Oregon considers "symbolic nudity" to be protected free speech. But does the TSA care about constitutional rights?

Was that a rhetorical question?

Yes it was.

Was "was that a rhetorical question?" also a rhetorical question? Yes, I think it was, but we have to go on now.

The TSA imposed a $1,000 civil fine, claiming Brennan violated the rule that one may not "interfere with, assault, or intimidate screening personnel." But it was undisputed that Brennan was quiet and polite from start to finish, so he didn't assault or intimidate anyone, nor did he interfere with anyone physically. The TSA's argument is that his actions required agents to surround him and shut down the checkpoint, and therefore he "interfered with" screening personnel.

This sort of argument is what we lawyers refer to as "bullshit."

It's the same argument made by police officers who arrest people they see filming them in a public place. You have a First Amendment right to record officers' actions in public. You do not, of course, have a First Amendment right to get in their way when you do it, but even when that hasn't happened, law enforcement has repeatedly argued that the arrests are legit because the detainee was "disturbing the peace" or they had to divert resources to deal with the "disturbance" and so on. Basically, that if they decide to hassle you (even if unjustified), then you are somehow the one who has interfered with them. This is the TSA's position in Brennan's case, and on April 2 (probably delayed a day so people wouldn't think he was joking), an administrative-law judge agreed, though he reduced the fine to $500.

The ruling comes down to this one point:

Respondent's actions in stripping and dropping his clothes on the floor and refusing to comply with [the agents'] directions ... constituted interference with their duties. TSA screening procedures required [them] to conduct a secondary screening due to the ETD alarm indicating nitrates were present. By dropping his clothes on the floor, Respondent presented an actual hindrance to the accomplishment of that task. The distraction caused by Respondent’s actions required [the agents] to shut down the checkpoint and divert other [agents] to this incident [and] compromised their ability to perform their screening duties.

Emphasis added. The whole ruling turns on that one sentence, and it's wrong.

Brennan opted out of scanning and got a pat-down. When the agent tested his gloves, the alarm went off. That means the machine has detected certain substances (like nitrates) found in explosives (and hand lotion, and lawn fertilizer, and bacon, etc., etc.), and you then get a further pat-down ("secondary screening") to see if you are carrying bacon, I mean a bomb. That's when Brennan stripped. This demonstrated quite clearly that he was not carrying a bomb. But the ruling concludes that "by dropping his clothes on the floor," Brennan "hindered" their efforts to check for a bomb. Huh?

He literally could not have made it any easier for them to see whether he was carrying a bomb on his person. Nor did he interfere with them checking the pile of clothes—they didn't even try to do that. In fact, "TSA personnel directed [Brennan] to put his clothes back on at least three times," the ruling states, not because he was free to go but so they could check him again with his clothes on. What? And when he refused, that's when they closed the checkpoint. Why? The security risk posed by a naked and unarmed man?

Because he embarrassed them, that's why. They could have checked his clothes and then said, okay, no bomb, you made your point, put your clothes on and go about your business. They didn't. They called the cops and shut down the checkpoint not because there was a potential threat, but because they wanted to punish him for protesting. He didn't interfere with screening, they did. As in the cop-filming cases, the TSA's position here has to be rejected because if they can turn any protest into "interference" by virtue of their own actions, that effectively gives them a veto over protests.

Isn't that a First Amendment issue too? What about Brennan's constitutional defenses? Ha! Who cares? According to TSA regs, its ALJs "may not: ... (v) Decide issues involving the validity of a TSA regulation, order, or other requirement under the U.S. Constitution ... or other law." Well, that's handy! We'll just issue a regulation preventing us from considering whether our regulations are illegal or unconstitutional. ("Wait, can we do that?" "I don't know—I'm not allowed to consider it!" <laughter>)

What about judicial review? As explained very well by the Papers, Please! blog, this was an internal agency ruling, not an actual court ruling. Brennan can appeal within the agency, and when he loses, then the judicial branch will get hold of this. But under a TSA-friendly law, that case must be heard by the circuit court of appeal, not the federal district court. A court of appeal can't hold hearings or have a trial, so the law effectively limits review to the record developed in the agency's hearing. That may or may not be an issue here, but why should TSA proceedings get this special treatment? They shouldn't.

Will the agency appeal reverse this injustice? That's another rhetorical question. But hopefully the Ninth Circuit will.

The first one was in 2005 when she rented Monster-In-Law, a movie in which Jennifer Lopez and Jane Fonda argue about a wedding; it sports a 16% rating at Rotten Tomatoes, and Roger Ebert said he tried to enjoy it but kept being "interrupted by bulletins from my conscious mind, which hated [it]."

The second one was failing to return the movie after she finished watching it (assuming she was able to finish watching it).

The third and by far the most serious mistake Kayla Finley made was going to a police station in Pickens County, South Carolina, four days ago, to report a crime.

These three mistakes combined led to her arrest and criminal charges for the nine-year-old offense of failing to return a rented video.

As FOX Carolina reported on Friday, Finley learned that when you interact with the police, for whatever reason, they will likely run a check on you. She may have known that, but was at least surprised to learn that in her case this turned up an outstanding warrant. The video briefly shows the warrant, which was indeed issued in Pickens County in September 2005 for failing to return "1 VIDEO, [NAMELY] MONSTER-IN-LAW...." Finley was definitely surprised to be arrested for this dastardly offense, let alone to be charged almost a decade after the alleged crime. She vowed to fight the charges.

The report calls this incident "crazy," and it is, but not for the reason you might expect.

On January 28, unexpected snow postponed the sentencing of 83-year-old Sister Megan Rice and two fellow activists in Knoxville, Tennessee. They face up to 30 years in prison for "willfully damaging federal property" (which they did) and "sabotaging national defense material" (which they didn't) by breaking into the Y-12 complex at Oak Ridge and brutally spray-painting peace slogans all over it.

They didn't damage anything except for the fences they cut through to get inside. So why were they charged as saboteurs? Here's why: the Y-12 complex is where the U.S. stores its weapons-grade uranium—over 100 tons of it—but three unarmed and untrained civilians with a combined age of 202 were able to get in and roam around for hours before even one guard appeared.

And that's embarrassing.

So, 9/11 happened, and over a decade and $1 trillion later, the government's got the TSA checking your waistbands but it can't keep a nun out of a nuclear-bomb plant. And she's the one being prosecuted?

Alleged National Security Threat

The activists weren't even trying to show that security at Y-12 was bad, although they definitely did that. They cut through at least three fences during their two-hour "infiltration," and then had plenty of time to paint slogans, hang banners and do some serious praying before Barney Fife showed up. It's a good thing they did break into this place before any bad guys got the idea, because even that moron who put a bomb in his underpants could probably have done some damage the way things were. (It's better now, at least according to the Department of Energy, so sleep well.)

I don't expect the government to be grateful about the vandalism, and I am fine with ordering the activists to pay restitution for that (as the judge has done). But beyond that, does anything more than token jail time make any sense?

The government is pretending to think so, although I should note that prosecutors are "only" asking for six to nine years, not the possible 30. And in an effort to justify even that request, they apparently cracked open the National Strategic Bullshit Reserve for the sentencing brief, which is full of stuff like this:

The defendants have been convicted of serious offenses that have caused real harm to the Y-12 National Security Complex.

Tip: If there had been any real harm they wouldn't say "real harm." They'd just say what it was.

They have shown no remorse for their criminal conduct. To the contrary, they have reveled in their violations and used it to gain publicity for their cause.

It's called a "protest," jackass. That's how they work.

By penetrating the secure and sensitive premises of Y-12 and having a highly-publicized trial, the defendants accomplished their mission.

Ooh, how evocative. They were on a "mission" when they "penetrated" your "sensitive premises," were they? Nice effort to make a nun sound slightly nasty.

Now that it is time for them to pay the price for their decision, the defendants ask for an incredible discount. The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions.

Oh, give it a rest, Nancy Grace. They did you a favor. Have them pay for your fences and then let them go home. And put the money towards some better fences before somebody armed with more than a Bible tries to get in.

With everything this country is using drones for, they crack down on beer delivery.

The video below is a commercial for Lakemaid Beer, brewed in Minnesota, and it shows a small drone being used to deliver a 12-pack of beer to fishermen out on a frozen lake. It is, obviously, pretty awesome. It was just a test, but still generated a call from the FAA.

After the video was posted, the FAA reportedly called the company and said that using a drone in this way for commercial purposes would violate current regulations. The FAA's current position on drones is that specific authorization is required to use one in U.S. airspace, except for model aircraft being used solely for recreational purposes. You could argue that's exactly what the video is depicting, of course, and it sounds like the FAA was only objecting to a wider rollout of this system for commercial deliveries, not complaining about the test itself.

Was this only a stunt for promotional purposes? Maybe, but it was a pretty good one. I wondered if the whole thing might be a hoax, but the ABC News report, for example, quotes real FAA spokesman Les Dorr. Asked to comment, Dorr said that the story was "barley news" but the media always "hops on" stories like this, and that he hoped matters had "finally come to a head." These are just the kind of cornball comments that give this the ring of truth. Unfortunately.

When we last checked in with the TSA—or, at least, the last time I mentioned it—it had just been outwitted by a child. Again. See "TSA Embarrassed by Nine-Year-Old Boy" (Oct. 11, 2013).

Possibly still smarting from that incident, the agency has now reportedly cracked down on weapons that might be carried by a nine-year-old, or rather carried by things that a nine-year-old might carry. Okay, I have no idea what age group this might or might not be appropriate for—what I'm trying to get to is the fact that a TSA agent in St. Louis confiscated a two-inch-long toy gun from a sock monkey dressed like a cowboy.

Quarters addedfor scale

According to Phyllis May, she and her husband were returning to Seattle from St. Louis when the sharp-eyed agent made the discovery. May has a small business making and selling unique sock monkey dolls, and was carrying two of the dolls and some sewing supplies with her in a carry-on bag. One of the dolls, "Rooster Monkburn," was outfitted in cowboy attire, including a monkey-sized version of the eyepatch John Wayne wore in "True Grit" and "Rooster Cogburn," and a monkey-sized version of the firearm he shot people with. Actually, "monkey-sized" is an exaggeration (unless when you hear "monkey" you think of the pygmy marmoset, but you probably don't). It was sock-monkey sized.

After finding the weapon-like item in May's bag, the TSA agent took her aside and the following took place:

“She said ‘this is a gun,’” said May. “I said no, it’s not a gun it’s a prop for my monkey.”

“She said ‘If I held it up to your neck, you wouldn’t know if it was real or not,’ and I said ‘really?’” said May.

The TSA agent told May she would have to confiscate the tiny gun and was supposed to call the police.

“I said well go ahead,” said May. “And I said really? You’re kidding me right, and she said no it looks like a gun.”

“She took my monkey’s gun,” said May, who has retained her sense of humor.

Emphasis added. What does thateven mean?

According to the Internet Movie Firearms Database—which is a thing that exists—Rooster Cogburn wielded a Colt Single Action Army revolver, a gun commonly used in Westerns because it was commonly used in the Old West. According to the NRA, which would probably know, the gun pictured here was one that John Wayne actually waved around in True Grit, Rio Lobo, and other films. As you can see, Rooster Monkburn's weapon—and I think this is kind of remarkable—appears to be historically accurate, more or less. John Wayne is said to have also used one with ivory grips (like General Patton did); it's hard to tell from movie stills because when he has his gun out he's holding it, of course. But apart from that difference, the agent is right. Rooster Monkburn's gun does indeed look like a real gun.

Except that it is two inches long.

Since the Single Action was about 10.5" long and fired a .45-caliber bullet weighing about 15 grams, I would hypothesize (translation: ain't doing the math) that the monkey-gun bullet would be about .08 inches in diameter and weighing maybe 2 grams, if the monkey gun came with bullets, which it doesn't, or was capable of firing them, which it isn't. All of which is to say that if a terrorist put it up to your neck, you would know whether it was real or not and whether to be worried. And you would then kick that terrorist's ass.

Ultimately, our heroic TSA agent decided not to call the police, and Ms. May at least got her other sewing supplies back, presumably including needles potentially more dangerous than the fake monkey-gun bullets the TSA pretended to confiscate.

———

Update: A reader (Mark Thorson) quickly noted that my math is wrong (which I realized shortly after hitting "post," or at least that's my story). I was just scaling it down in one dimension, but mass and weight are related to volume and so would actually go down by "the cube of the linear scale factor":

In this case, the linear scale factor is about 5, so the weight of the bullets scales by about 1/5 x 1/5 x 1/5, which is 1/125. So, a 15-gram real bullet becomes about an 0.12 gram sock-monkey bullet.

So however dumb you thought the TSA was based on my math, you should at least cube that.

On Tuesday the Canadians gave us one more free taste by announcing that they had, after a year-long manhunt, arrested the last suspected member of the Maple Syrup Gang.

A total of 23 people have now been arrested in connection with the theft, which apparently took place incrementally over the course of a full year. The Economist offers at least one detail about it that is new (at least to me): "The larceny was discovered after an accountant climbed a stack of barrels to take inventory and nearly toppled an empty one." We'd have gotten away with it, too, if it weren't for you meddling accountants! I've seen many different estimates as to the size of the caper overall. According to the most recent report, the Federation of Quebec Maple Syrup Producers (which the report describes as "the OPEC of the maple syrup world") keeps about 40 million pounds in the GSMSR, which it uses to stabilize prices. The thieves are said to have gotten away with about 15 percent of that, something like 9,600 barrels at 620 pounds per barrel, and worth about C$18 million.

Two-thirds of the stolen syrup has been recovered, some of it from syrup dealers in other provinces (the GSMSR is in Quebec) and in the United States. None of them knew anything about the heist, of course. The Economist did take the opportunity, though, to note that some merchants are not happy with the Federation's nearly complete syrup monopoly, implying that some of them might not have asked too many questions when a door-to-door syrup merchant showed up with a tanker truck. See also "The Maple Syrup Cartel: Quebec's syrup monopoly helped spawn smuggling, prohibition style," National Post (Feb. 16, 2013).

Indeed, the Post article notes the similarities to Prohibition and the "War on Drugs," including the emergence of a thriving black market and alleged civil-rights violations by agents of the Federation. "Inspectors use aliases to stage phoney illegal syrup deals to ensnare bootleggers, just like undercover police conducting drug stings," the article states, and the cops have seized millions of dollars' worth of syrup and equipment from people suspected of illegal syrup trafficking. "It's practically like a dictatorship," said the manager of one export company that was completely cleaned out. "They abuse their powers. We're not in Russia," she continued, for some reason still thinking of Russia as the only place where that kind of thing happens. I bet the Canadians at least were polite about it.

Quebec produces about 75% of the world's maple syrup, but that share has been slowly declining over the years, partly due to increased competition from U.S. producers. For now, though, the syrup cartel is back in control.

Although people who are blind can participate fully in nearly all life’s experiences, there are some things, like the operation of a weapon, that may very well be an exception.

Patrick Clancy, SuperintendentIowa Braille and Sight Saving School

There's no reason solely on the [basis] of blindness that a blind person shouldn't be allowed to carry a weapon.

Chris Danielson, Public Relations DirectorNational Federation of the Blind

I'm not an expert in vision. At what point do vision problems have a detrimental effect [on firing] a firearm? If you see nothing but a blurry mass in front of you, then I would say you probably shouldn't be shooting something.

Sheriff John LeClereDelaware County, Iowa

When you shoot a gun, you take it out and point and shoot, and I don't necessarily think eyesight is necessary.

Michael Barberblind person

Imagine me with a gun. It's just crazy.

Stevie Wonderanother blind person

Is it, Mr. Wonder? Or is it just … <looks into camera> … very superstitious?

The legal issue, or at least a legal issue, is whether an Iowa law that requires officials to issue permits in most circumstances also applies if the applicant is blind. Some people think that to deny a gun permit merely because of blindness is illegal discrimination. Others note that disability accommodations usually need only be "reasonable," and also suggest there is value, and maybe even an important public safety interest, in making sure that gun owners can actually aim before blazing away.

Personally, I'm with Stevie on this one. I don't think anybody argues it's unreasonable or discriminatory to deny a driver's license to someone on the grounds that they can't see where they're going, so I'm not sure why it should be any different if someone can't see where he's shooting.

Based on documents provided by Edward Snowden, the Post reports that the NSA, to which the President seemed to be referring last week, has in fact "broken privacy rules or overstepped its legal authority" many thousands of times. The formerly secret documents include an internal audit that counted 2,776 "incidents" in a 12-month period, and that only counted incidents at facilities in the Washington area. (Sources said the number would be "substantially higher" if it included other facilities.) Most of the incidents involved surveillance wholly within the United States, which you may recall is that thing they said they aren't doing because of it being illegal.

Some of the incidents were said to have arisen from "typographical errors." The most amusing of these is the typo that caused the NSA to mistakenly collect "data on numerous phone calls from the Washington area code 202, thinking they were foreign calls from Egypt, whose country code is 20." Well, that's understandable. Somebody at the world's most technically sophisticated intelligence agency (or at least the most expensive) accidentally typed in an extra "2," and, coincidentally, ended up spying on calls in, of all places, Washington D.C. Wow, I bet there were some red faces after that one.

Also, it appears that "[u]nder NSA auditing guidelines, the incident count does not usually disclose the number of Americans affected." Just one "incident," for example, involved over 3,000 files that the NSA kept after being ordered by the FISA court to destroy them, each file containing an "undisclosed number of telephone call records." I don't want to do the math, but that's starting to sound like a lot. And it still doesn't count the "pervasive" collection and searching of innocent Americans' records that the NSA sweeps up "incidentally" when targeting someone it's actually allowed to target.

That is, incidental collections aren't "incidents."

There is also fun stuff here on the claim that the NSA is subject to comprehensive "oversight." "In one required tutorial," the Post says, "NSA collectors and analysts are taught to fill out oversight forms without giving 'extraneous information' to 'our ... overseers,'" namely the Justice Department, Congress, and the FISA court. For example, the "targeting rationale" is limited to "one short sentence" and no "probable-cause-like information" can be supplied. How's that go again? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable-cause-like information"? No, that doesn't sound right.

Maybe the memo explains the term somewhere, or explains how an overseer is supposed to decide whether surveillance is justified based on "one short sentence." I didn't read the whole thing. Let me know.